Fischer v. Andersen Corp.

• Decision Date: 13 April 2007
• Docket Number: No. 06-2273.,06-2273.
• Citation: 483 F.3d 553
• Parties: Rodney P. FISCHER, Appellant, v. ANDERSEN CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

483 F.3d 553

Rodney P. FISCHER, Appellant, v. ANDERSEN CORPORATION, Appellee.

No. 06-2273.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2006.

Filed: April 13, 2007.

Judith K. Schermer, Minneapolis, MN, for appellant.

David M. Wilk, St. Paul, MN, for appellee.

Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Rodney Fischer appeals from the district court's¹ summary judgment in favor of his employer, Andersen Corporation ("Andersen"), on his claim that Andersen, with the intention of interfering with his rights to future pension benefits, forced him to take early retirement in violation of section 510 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1140. We affirm.

I.

Fischer joined Andersen in 1971 to work at its door production facility. From early 1990 until his retirement in 2003, he served in an engineer support role. While he had consistently received satisfactory job performance reviews through 2002, notes in a May 21, 2001, review point out that Fischer was uncomfortable with assignments that required quick responses and that he had difficulties with coordination, implementation, and follow-up projects. They also specified, among other things, that his communication skills were an area in which improvements are "most desirable."

In early 2002, the plant had not been satisfying its customers, and the door plant engineers had a poor record of delivering projects on time and on budget. Andersen appointed Mike Midby to the position of engineering manager for Andersen's door plant, with instructions to improve the skills and overall performance of the engineering team. Fischer contends, though, that "the rumor was that Mike Midby was coming . . . to start forcing out older engineers."

Midby repeatedly told the entire department that he had higher performance expectations than did his predecessors and that he was "raising the bar." In the summer of 2002, Midby told Fischer that if he wanted to remain in his then-current employment classification category of "Engineer I," he would have to begin taking direct responsibility for projects and no longer work in a support capacity. Fischer embraced the opportunity and took on project leader responsibilities—a role that he had not been involved in "in some time."

On January 22, 2003, Midby met with Fischer about an unsatisfactory job performance review. The review noted that Fischer's communication and management skills were deficient for his new role as project leader. It further noted that as a result of Fischer's poor performance, another Andersen employee had to set up an emergency team to complete one of Fischer's projects. Fischer conceded that the other employee had not treated him unfairly. As a result of the review, Midby told Fischer of his intention to put him on a Performance Improvement Plan ("PIP").² After this conversation, Fischer allegedly complained of a threat of termination and of age discrimination to Bruce Lundeen, Andersen's human resource specialist. Lundeen, however, recalls only that Fischer had been upset about the review and criticism.

On February 6, 2003, Fischer met with Midby and Jim Moulton, Midby's supervisor, to discuss his job performance. Prior to this meeting, Fischer allegedly learned that a co-worker, Wayne Schmidt, had avoided a PIP by giving Moulton and Midby a retirement date. Accordingly, at the meeting, Fischer volunteered to them that in 1988 he and his wife had decided that he would retire in 2003. He additionally stated that his current plan was to retire as early as August 2003 and no later than December 31, 2003. Because of the time and effort associated with creating and implementing a PIP, Midby testified that it would not be sensible to begin a PIP process in light of Fischer's imminent retirement. Instead, Fischer was to make improvements without formal oversight and would be placed on a PIP only if he did not retire by August and did not improve. Despite testifying that it was fair of Midby and Moulton to request during the February meeting that he improve his work performance, Fischer alleges that the PIP meeting was orchestrated by Midby to force Fischer to give him a retirement date. He also asserts that Midby admitted as much at the time.

On May 2, 2003, Midby and Fischer met again because Midby wanted to discuss Fischer's continued lack of performance and the possible imposition of a PIP. Fischer contends that Midby threatened him with a PIP if Fischer did not retire in August. According to Midby's notes of the meeting, however, Midby indicated that he focused on Fischer's performance and discussed imposing a PIP despite Fischer's plan for retirement. After the meeting, Midby decided that a PIP would not be effective given Fischer's attitude and beliefs about his work duties and responsibilities. He therefore recommended to Andersen that Fischer be given the choice of termination or immediate retirement.

After consulting with the head of human resources, Midby eventually changed his mind and agreed to give Fischer another chance. On June 9, 2003, Midby and Moulton presented Fischer with a PIP specifying the general categories of project work, communication, and general work habits as areas requiring improvement. The plan also outlined specific and approachable sub-areas under each of these categories for Fischer to work on. Fischer claimed in his affidavit that the PIP contained impossible demands, but he testified that the objectives set forth in the PIP were reasonable. During the meeting, which Fischer secretly tape recorded, Fischer asked several times whether he could avoid the PIP by setting a specific retirement date. According to the recording, Midby answered in the negative and repeatedly indicated that the performance issues and Fischer's potential retirement were entirely separate. Following the meeting, Fischer felt ill and left work. He was subsequently treated by a physician and was placed on short-term disability due to stress and anxiety. He never returned to work and formally retired on December 5, 2003.

Fischer testified that he chose to retire in order to retain his existing health plan instead of accepting a new health plan that would otherwise replace his current plan in January of 2004. Despite this admission, he also asserts that he was constructively discharged. He alleges that on numerous instances various authoritative employees at Andersen misrepresented facts to him by stating that he would permanently lose his medical benefits should he be terminated for failing a PIP. Furthermore, he notes that Andersen had not made available any written pension plan summary, as required by statute, that would have definitively clarified the issue. Because he considered the requirements of the PIP impossible to accomplish, Fischer contends that Andersen was effectively offering him a choice between voluntary early retirement with reduced pension benefits that included health benefits, and inevitable termination with the same reduced pension benefits but stripped of the health insurance. Given these circumstances, Fischer argues that he was constructively discharged.

The district court granted Andersen summary judgment on Fischer's claim that Andersen failed to disclose pension plan information in violation of ERISA, finding that the claim had not been pled.³ It also granted Andersen summary judgment on Fischer's interference with pension benefits claim, holding that Fischer had not made a prima facie case of interference and, in the alternative, even if he had done so, Fischer lacked evidence of pretext in light of Andersen's justification for placing Fischer on a PIP.

II.

We review the district court's grant of summary judgment de novo. Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir.2002). When the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. FED.R.CIV.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court should grant summary judgment if any essential element of the prima facie case is not supported by specific facts sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Under section 510 of ERISA, it is unlawful for an employer to discharge a participant in an employee benefit plan "for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. . . ." 29 U.S.C. § 1140 (2006). To prevail under his ERISA interference claim, then, Fischer must show that (1) Andersen subjected him to an adverse employment action, (2) he was likely to receive future benefits, and (3) there was a causal connection between the adverse action and the likelihood of future benefits. Kinkead v. Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir.1995).

Fischer has not introduced facts sufficient to demonstrate an adverse employment action. He argues that he satisfied this element by providing evidence supporting his conclusion that he was constructively discharged. We disagree. Constructive discharge is implicated only where an employer creates conditions so intolerable that a reasonable person would resign. West v. Marion Merrell Dow Inc., 54 F.3d 493, 497 (8th Cir.1995) (noting also that the standard is objective); Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir.1998) (same). An employee is not constructively discharged when an employer merely implements a PIP. See, e.g., Givens v. Cingular Wireless, 396 F.3d 998, 998-99 (8th Cir.2005) (per curiam) (affirming the...